Earlier this week, we wrote about the revelation (via a leaked text) that the Canada-EU Trade Agreement, which is nearing completion, contains provisions in the IP chapter that are extremely similar to ACTA. It's a pretty clear attempt to reboot the ACTA process via a back door, and Michael Geist's coverage drew a lot of attention to the issue in Europe. Now, it looks like damage control is already underway: Geist reports that the European Commission has made a weak attempt to assuage concerns by announcing that two of the ACTA-like provisions in CETA have been dropped. Unfortunately, those provisions only represent a small fraction of CETA's similarities to ACTA:

The European Commission, which initially indicated that it would not respond to the posting of the leaked CETA IP chapter, has now responded by saying that the two ACTA provisions involving Internet providers have been dropped from CETA. When asked whether those were the only changes, EU Trade spokesperson John Clancy said there may be other changes but that this was the biggest one.

While the removal of the Internet provider provisions is a good step, the European Parliament's overwhelming rejection of ACTA was the result of far more than just the Internet provider provisions. Indeed, there has been concern about digital locks, damages, criminal provisions, and border measures. All of those provisions also appeared in the February 2012 CETA draft and Clancy's response suggest that most, if not all, remain there.

So... some of the bad stuff has been removed from the leaked draft that we weren't supposed to see in the first place. Also there may be other changes—who knows? Certainly not the public, and apparently not the EU Trade spokesperson either. You probably see the real issue here: even if they removed all of the controversial provisions from CETA, there would still be the little matter of how they were trying to quietly push through all the exact same stuff that citizens and politicians across Europe rose up and rejected mere weeks ago. The public still had to learn about it via a leaked document. New information comes in the form of vague descriptions, not new public drafts. This is not how you negotiate an international agreement in the 21st century, and that's what people are reacting to.

I suspect the people behind CETA are really, really annoyed: they were so close to slipping this one through, and now they might have another ACTA on their hands. How many times does this have to happen before politicians, diplomats, and the special interest groups that drive these agreements realize they no longer get to operate without public scrutiny?

Even in the face of a resounding rejection of ACTA by the European Parliament last week, the European Commission seems determined to keep pushing for its eventual adoption. Techdirt noted some ways in which it might try to do that, but an important article by Michael Geist lays out what seems to be an alternative approach that is already close to fruition:

According to recently leaked documents [pdf], the EU plans to use the Canada-EU Trade Agreement (CETA), which is nearing its final stages of negotiation, as a backdoor mechanism to implement the ACTA provisions.

Here's how that would work:

The European Commission strategy appears to be to use CETA as the new ACTA, burying its provisions in a broader Canadian trade agreement with the hope that the European Parliament accepts the same provisions it just rejected with the ACTA framework. If successful, it would likely then argue that ACTA poses no new concerns since the same rules were approved within the Canadian trade deal.

What's extraordinary is how slavishly the CETA IP chapter follows ACTA -- Geist's post provides a table comparing the two in detail, and for many key issues, CETA adopts ACTA's wording exactly.

This includes requiring the promotion of "cooperative efforts" that could see ISPs taking down content on a "voluntary" basis; the use of the meaningless term "fair process"; disclosure of a subscriber's information "expeditiously" upon accusation of infringement; civil damages that consider "any legitimate measure of value that may be submitted by the right holder, including lost profits"; the use of the vague term "commercial scale" for both civil and criminal enforcement measures; and criminal liability for "aiding and abetting" infringement.

What that means is that practically all of the key stumbling blocks that persuaded the European Parliament to vote against ACTA are also present in CETA. As Geist observes;

The backdoor ACTA approach creates enormous risks for Canada's trade ambitions. Given the huge anti-ACTA movement, the Canada-EU trade deal could face widespread European opposition with CETA becoming swept up in similar protests.

After all, if those proposals were problematic in ACTA, they are equally problematic for CETA, and so it seems likely that the European Parliament will vote against the entire Canada-EU trade deal just as it threw out ACTA. The obvious solution is to remove the intellectual property chapter from CETA altogether to avoid this risk. Geist points out there's an important precedent for this:

the U.S. and EU recently announced their own plans to negotiate a trade deal but agreed to keep intellectual property issues out of the talks. If CETA becomes known as ACTA II, the future of the Canada-EU trade deal may hinge on adopting a similar approach.

That would not only be a good idea for CETA, it would be sensible for all trade agreements, since it would return them to their original aim of promoting trade between nations, not regulating the domestic laws governing things like copyright.

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Remember how Canada and Mexico have been asked to join the negotiations over the Trans-Pacific Partnership (TPP) agreement -- and both agreed to do so? You might think that this would enable them to show up this week in San Diego and at least observe, if not actively participate in, the latest round of negotiations. No such luck. Both countries have been denied access to the negotiations as observers. This is, of course, similar to what Rep. Darrell Issa discovered after his own request -- but in that case, you can at least kind of understand, since we already know that the USTR wants to hide its negotiations from Congress. But denying two countries who are entering the negotiations? If Canada or Mexico had any self-esteem at all, this is the point where they should have walked out and said to hell with the TPP. Why should they be expected to join an agreement where secret negotiations are happening, which they're not allowed to take part in?

In our post game analysis of Canada's new copyright law, we noted the surprising number of good things in there. But, still, much of the focus (quite reasonably) is on the really awful "digital locks" provision, which has many similarities to the US's anti-circumvention clause in the DMCA, and similar copycat DMCA-like provisions around the globe. There is one piece of the DMCA and the digital locks portion of the C-11 bill which has simply never made any sense to me at all: it's that circumvention of "technical protection measures" (generally, DRM) breaks the law even if the circumvention was to make a legal copy of something. It has never been explained why such a provision cannot be limited to cases where the tools are used to infringe. When you make such a broad restriction against circumvention, you lock up plenty of perfectly legal uses of content and (potentially even worse) open up an opportunity to deny people access to things in the public domain -- creating the potential for a perpetual copyright via DRM.

And now, according to some government documents that Michael Geist obtained using an access to information request, we discover that Canada's own Justice Department appears to have worried that the digital locks provision -- when not tied to actual infringement of content -- was itself unconstitutional. While the analysis actually covers an earlier version of Canada's copyright reform effort, the digital locks provisions are still quite similar, and clearly do not address the constitutional concerns the Justice Department raised.

At the very least, this certainly opens the door for a constitutional challenge to the provision. Either way, I'm curious, for the various copyright system defenders we have in the community here, if anyone can take a stab at why it makes sense to have anti-circumvention rules apply even in cases where no content is actually infringed? Some of us would really like to know...

Close on the heels of Canada's recent copyright reform bill (which despite significant problems also contains some fantastic language that carves out important new exceptions to copyright) the Federal Court of Canada has issued a significant ruling that answers some key questions about copyright online. The decision is in a lawsuit filed by Richard Warman and the National Post against the operator of a forum, and looks at two main points: the right to quote news articles, and the right to link to a photo. On the first question, the court made it clear that even a several-paragraph quote is protected, on not just one but two levels:

While the first claim (Warman's article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long. The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a "substantial part" of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum. The decision then includes an analysis of the six factor test and concludes that the use was fair.

Both aspects of that part of the ruling are clear and could have a huge impact on copyright licensing in Canada. Perhaps most notably, as Michael Geist also points out, it raises even more serious questions about the disastrous situation surrounding Access Copyright negotiations at Canadian colleges and universities, and makes the already terrible deal (which many schools are signing on to) look even worse. Unfortunately, since the AUCC all but abandoned its members in those negotiations, many schools will have a hard time benefitting from this ruling—but for those universities that have decided to reject the deal and fight the good fight, the ruling represents a substantial boon to their position.

On the subject of linking to a photo, the decision lays down a third important standard, and is again unequivocal about doing so:

The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement.

To many of us, that's just common sense: putting something on the internet constitutes a public invitation to link to it. But for years, time and time again we've seen courts and companies around the world attempt to claim that linking is infringement, or otherwise not allowed. And, indeed, this also has serious implications for the Access Copyright agreement, which has schools paying licensing fees and obeying rules for linking to material, despite it becoming clearer and clearer that copyright does not cover these activities.

All told, this is an excellent decision, and offers further proof that Canada has the very real potential to move copyright law in a positive direction. There are still lots of battles to be fought, but there's also a genuine emphasis on the rights of users (especially in the courts) that can hopefully be harnessed and nurtured more and more over time.

On Monday, after multiple attempts over several years, Canada's House of Commons passed Bill C-11 (previously known by other names), a sweeping copyright reform bill. Senate approval is all but assured, and the bill is essentially certain to become law in the near future. Luckily, unlike SOPA/PIPA in the States, C-11 is not a ridiculous, draconian internet lockdown bill. In fact, there's a lot to celebrate in the bill, though that celebration is marred by one significant problem: the digital locks portion, which is similar to the DMCA's anti-circumvention rules.

But first, the good stuff. Michael Geist has an excellent summary of C-11 with a comparison to previous phases of copyright law in Canada. The victories for smarter copyright law in C-11 sound almost like fantasy when compared to the American copyright debate. They include:

• New fair dealing provisions (our version of fair use) to cover educational uses, plus parody and satire
• New backup, format-shifting and time-shifting allowances that remove previous restrictions on networked DVRs and internet TV services (similar to those that have suffered in American courts)
• Explicit copyright exceptions for "user-generated content", aimed at protecting non-commercial fan-art and remixes
• A bunch of explicit exceptions for schools, such as the right to stage public performances
• A notice-and-notice system, not a notice-and-takedown system
• A $5,000 cap on statutory damages for all non-commercial infringement

Many of these are, as Geist calls them, "user-focused reforms"—something conspicuously absent from most proposed copyright legislation these days. But the digital locks issue remains a black mark on C-11, as the concerns of groups representing consumers, the blind and visually impaired (who will have a tougher time accessing digital content now), and Canadians in general were all brushed aside in favor of a DMCA-style approach that makes it illegal to circumvent copy protection systems even if it's for the purposes of making a legal copy. This, unfortunately, weakens the impact of all the positive reforms in the bill, because it creates a glaring loophole whereby rightsholders can attempt to block copying even if it's for one of the newly defined legal reasons. It's a real shame, and it also represents a foot-in-the-door for those who want more DMCA-style laws in Canada.

Still, it hardly erases the fact that there's a lot to like in C-11. User rights got more attention and more serious consideration in this bill than they ever did in SOPA/PIPA. Given that American diplomats were (and still are) actively pushing for Canadian versions of the DMCA and SOPA (or even more draconian laws that they can then import back to the U.S.), we came out of this one pretty well.

Some recent news out of Canada involves reports that the airport in Ottawa has hidden microphones installed, designed to record conversations of people. The Canada Border Services Agency (CBSA) doesn't seem to see anything wrong with this, admitting that it's spent $500,000 upgrading video equipment to also include audio capturing. And, while the CBSA says that:

“It is important to note that even though audio technology is installed, no audio is recorded at this time. It will become functional at a later date..."

...it's also worth pointing out that the group admits similar equipment is already functional elsewhere.

What about your privacy rights? Well, clearly you read the fine print on the website of the airport you were using, right? That's where the details are going to be posted. There will be signs in the airport... telling you to check the website, because you just know people are going to rush to do that.

We've been talking about the Trans Pacific Partnership agreement (TPP) that's being negotiated among a bunch of countries around the Pacific rim. Of course, we've been mostly focused on the intellectual property section, though it covers a lot more than that. Through leaks, we've already seen that the agreement really is an attempt to give special interest corporations extra benefits, rather than anything designed to actually help the public. That explains why only a few special interests have been able to see the documents (outside of leaks), but the public is left out. Of course, if you've been following the negotiations, you'll note that there are some major "gaps" in PacRim countries taking part in the agreement. China, Japan, Canada and Mexico are all pretty big countries that touch the Pacific... and have nothing to do with the negotiations.

Canada has been wanting to join, but the entertainment industry has been blocking those efforts. Japan has wanted to join, but automakers in Detroit have been saying no. China just has no interest in shackling itself to the interests of American companies.

Yesterday it was announced that Mexico has been "approved" to join the negotiations. President Obama announced at an event in Mexico that it could join the negotiations, leaving many people to note the fact that nothing at all was said about Japan or Canada. Well... today Canada has been added to the pack as well, though still no word on Japan.

Mexico presents an interesting participant on the intellectual property side. While its executive branch supported ACTA, the Mexican Senate was not happy -- voting to pull out of the negotiations earlier, and then rejecting ACTA directly. So it will be interesting to see how Mexico responds to the IP sections of TPP.

The situation with Canada may be even more troubling. There are reports that one of the conditions for Canada to join was that it had to accept the existing language in TPP and would not have veto rights to anything. Now, remember: the text of TPP is not public. So in order for Canada to agree, it needs to agree to abide by rules that it has not seen or approved. That's pretty crazy. Furthermore, as Michael Geist points out, seeing as Canada just approved its new copyright reform, much of which seems to conflict with the leaked IP proposals in TPP, Canada may have to dump much of the copyright law it just fought so hard to get passed.

IPv6 has been around for quite some time at this point, but as we get closer and closer to moving the internet over to the system, it appears that American and Canadian law enforcement has just noticed that it's not as easy to identify and track users, and they're frantically raising concerns.

FBI, Drug Enforcement Administration, and Royal Canadian Mounted Police officials have told industry representatives that IPv6 traceability is necessary to identify people suspected of crimes. The FBI has even suggested that a new law may be necessary if the private sector doesn't do enough voluntarily.

The issue has more to do with record-keeping than technology. As Declan McCullagh explains at the link above:

ARIN and the other regional registries maintain public Whois databases for IP addresses, meaning that if you type in 64.30.224.118, you can see that it's registered to CNET's publisher. ARIN tries to ensure that Internet providers keep their segments of the Whois database updated, and because it's been handing out IPv4 addresses blocks every few months, it currently enjoys enough leverage to insist on it.

But for IPv6, ARIN will be handing out much larger Internet address blocks only every 10 to 15 years, meaning it loses much of its ability to convince Internet providers to keep their Whois entries up-to-date. That means it may take law enforcement agencies -- presumably armed with court orders -- longer to trace an IPv6 address such as 2001:4860:4860::8888 back to an Internet service provider's customer.

Of course, some might see that as a feature, not a bug. Either way, I would imagine that most service providers will bend over backwards to make sure that law enforcement can, in fact, track people down if necessary. Too many service providers fold when the feds come knocking seeking information on people already. As long as this is presented as a way to protect children or stop terrorists or whatever the favorite of the day is, it seems likely that ISPs will get things in order themselves.

Google has continued to update its big "Transparency Report" with new data on specific content takedown requests from government agencies. With this latest update, Google has put out a blog post warning people that governments -- including those not normally associated with censorship -- are increasingly seeking to shut down speech for what appear to be politically motivated reasons:

We noticed that government agencies from different countries would sometimes ask us to remove political content that our users had posted on our services. We hoped this was an aberration. But now we know it’s not.

This is the fifth data set that we’ve released. And just like every other time before, we’ve been asked to take down political speech. It’s alarming not only because free expression is at risk, but because some of these requests come from countries you might not suspect—Western democracies not typically associated with censorship.

For example, in the second half of last year, Spanish regulators asked us to remove 270 search results that linked to blogs and articles in newspapers referencing individuals and public figures, including mayors and public prosecutors. In Poland, we received a request from a public institution to remove links to a site that criticized it. We didn’t comply with either of these requests.

There are some interesting, if odd, specific examples, like the following:

Brazil: In December, we received an electoral court order that resulted in the removal of four orkut profiles for content related to political campaigns.

Canada: We received a request from the Passport Canada office to remove a YouTube video of a Canadian citizen urinating on his passport and flushing it down the toilet. We did not comply with this request.

Pakistan: We received a request from the Government of Pakistan's Ministry of Information Technology to remove six YouTube videos that satirized the Pakistan Army and senior politicians. We did not comply with this request.

Poland: We received a request from the Polish Agency for Enterprise Development to remove a search result that criticized the agency as well as eight more that linked to it. We did not comply with this request.

Spain: We received 14 requests from the Spanish Data Protection Authority to remove 270 search results that linked to blogs and sites referencing individuals and public figures. The Spanish Data Protection Authority also ordered the removal of three blogs published on Blogger and three videos hosted on YouTube. We did not comply with these requests.

United States: We received a request from a local law enforcement agency to remove a blog because of a post that allegedly defamed a law enforcement official in a personal capacity. We did not comply with this request, which we have categorized in this Report as a defamation request.

We received a request from a local law enforcement agency to remove 1,400 YouTube videos for alleged harassment. We did not comply with this request. Separately, we received a request from a different local law enforcement agency to remove five user accounts that allegedly contained threatening and/or harassing content. We terminated four of the accounts, which resulted in the removal of approximately 300 videos, but did not remove the remaining account with 54 videos.

We received a court order to remove 218 search results that linked to allegedly defamatory websites. We removed 25% of the results cited in the request.

This expansion of governments seeking to censor speech via Google takedowns is clearly worrisome, though it's good to see that Google at least investigates the details before taking down the content.